Inventive machines are increasingly being used in research, and once the use of such machines becomes standard, the standard of the “person skilled in the art” used to judge “obviousness” for patentability should be a person using an inventive machine, or just an inventive machine. As inventive machines continue to improve, this will increasingly raise the bar to patentability, eventually...
Invoking Federal Common Law Defenses in Immigration Cases
This article argues that we should take a deeper look at the applicability of federal common law defenses in immigration cases. In the rare cases where noncitizens attempt to raise common law defenses, such arguments tend to be dismissed by immigration judges because removal proceedings are civil, not criminal. Yet many common-law defenses may be raised in civil cases. This article proposes three...
Private Accountability in the Age of Artificial Intelligence
This article explores the impending conflict between the protection of civil rights and trade secrecy in an age of big data, as exemplified by a number of recent cases involving algorithmic bias and discrimination. In a world where the activities of private corporations are raising concerns about privacy, due process, and discrimination, we must focus on the role of corporations in addressing the...
Episode 4.1: Reclaiming Land Use Law: Using People Power to Guide Development
Dialectic hosts Sunjana Supekar and Jason Lawler talk with Doug Smith, Ysabel Jurado, and Joe Donlin about the role of community planning in combating gentrification in Los Angeles.
Dispatches from the Other Side of Development
Professor K-Sue Park's introduction to series Gentrification, Displacement, and Dispossession.
How Constitutional Norms Break Down
The article calls attention to the latent instability of constitutional norms and theorizes the structure of constitutional norm change. It argues that, under certain conditions, it will be more worrisome when norms are subtly revised than when they are openly flouted. Thus, President Trump’s flagrant defiance of norms may not be as big a threat to our constitutional democracy as the more complex...
The Constitution of Our Tribal Republic
Long before there was a U.S. Constitution for the American republic, there were treaties among Indian Nations and between Indian Nations and colonial governments reflecting ideals of consultation and negotiation among self-determining peoples. Using negotiations between the United States and the states a point of comparison, this article works through what it might mean to think about...
Unbundling Populism
Populism is primarily defined in our public discussions by the loudest self-identifying populists active in democratic politics at the moment. Populism has therefore often been treated as a concept merging not just antiestablishment sentiments, but also authoritarian and xenophobic sentiments. The article argues the antiestablishment part of populism can be empirically and logically unbundled...